BOARD DATE:	  15 March 2011

		DOCKET NUMBER:  AR20100022324 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests upgrade of his under other than honorable conditions discharge to a general discharge.

2.  The applicant states he served from 1984 to 1990 at Fort Bragg, NC and because he did not show up for morning formation, his general discharge was downgraded to a dishonorable discharge.

3.  The applicant does not provide any supporting documents with his application. 

CONSIDERATION OF EVIDENCE:

1.  Title 10, U.S. Code, section 1552(b), provides that applications for correction of military records must be filed within 3 years after discovery of the alleged error or injustice.  This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the 3-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so.  While it appears the applicant did not file within the time frame provided in the statute of limitations, the ABCMR has elected to conduct a substantive review of this case and, only to the extent relief, if any, is granted, has determined it is in the interest of justice to excuse the applicant’s failure to timely file.  In all other respects, there are insufficient bases to waive the statute of limitations for timely filing.

2.  The applicant enlisted in the Regular Army on 29 February 1984.  He completed his initial entry training and he was awarded military occupational specialty 94B (Food Service Specialist).  He reenlisted on 26 February 1987 for a 3-year period.  The highest rank/grade he attained was specialist four (SP4)/E-4.

3.  The applicant's service record is void of documents showing he received nonjudicial punishment and there are no records of a court-martial conviction.

4.  On 17 September 1990, court-martial charges were preferred against the applicant for being absent without leave (AWOL) from his unit from 15 June 1989 to 12 September 1990.  This equates to 1 year, 2 months, and 28 days of unauthorized absence.

5.  On 18 September 1990, he signed a voluntary request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, indicating that he was making the request of his own free will and that he had been afforded the opportunity to speak with counsel prior to making this request.  In his request, the applicant acknowledged he understood he could be discharged under other than honorable conditions, that he could be deprived of many or all Army benefits, that he could be ineligible for many or all benefits administered by the Department of Veterans Affairs, and that he may expect to encounter substantial prejudice in civilian life if he were issued an under other than honorable discharge.

6.  On 28 September 1990, the separation authority approved the applicant's request for discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service in lieu of court-martial.  He directed the applicant be issued an Under Other Than Honorable Conditions Discharge Certificate and reduced to the rank/grade of private (PV1)/E-1.

7.  On 31 October 1990, the applicant was discharged accordingly.  The DD Form 214 issued at the time confirms he completed 5 years, 4 months, and 14 days of creditable active service with time lost from 19 April 1989 through
10 May 1989 and from 15 June 1989 through 11 September 1990.

8.  There is no evidence to show the applicant applied to the Army Discharge Review Board for an upgrade of his discharge within its 15-year statute of limitations.

9.  References:

	a.  The Manual for Courts-Martial Table of Maximum Punishments sets forth the maximum punishments for offenses chargeable under the Uniform Code of Military Justice.  The maximum punishment for AWOL is a punitive discharge (dishonorable discharge or bad conduct discharge), confinement for 12 to 18 months, reduction to grade E-1, and a total forfeiture of all pay and allowances.

	b.  Army Regulation 635-200 sets forth the basic authority for the separation of enlisted personnel.  Chapter 10 provides that a member who has committed an offense or offenses for which the authorized punishment includes a punitive discharge may submit a request for discharge for the good of the service in lieu of trial by court-martial.  The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt.  Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate.

	c.  Army Regulation 635-200, paragraph 3-7b, provides that a general discharge is a separation from the Army under honorable conditions.  When authorized, it is issued to a Soldier whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge.  A characterization of under honorable conditions may be issued only when the reason for the Soldier's separation specifically allows such characterization.

DISCUSSION AND CONCLUSIONS:

1.  While the applicant stated he received a dishonorable discharge, his statement is not supported by the evidence of record.  Based on his extended absence, he was charged under the Manual for Court-Martial for being AWOL in excess of 30 days.  This offense carried a maximum punishment of a punitive discharge, confinement for up to 18 months, and a forfeiture of pay and allowances.  In lieu of court-martial, he requested an administrative discharge under the provisions of Army Regulation 635-200, chapter 10, for the good of the service - in lieu of court-martial, to avoid the possibility of confinement at a Federal penitentiary or the U.S. Disciplinary Barracks, a felony conviction, and a dishonorable discharge.

2.  The applicant's 1 year, 2 months, and 28 days of AWOL is serious misconduct and refutes the applicant's contention that he was given his under other than honorable conditions discharge for missing formation.

3.  The type of discharge directed and the reasons for the discharge were appropriate considering all the known facts of the case.  The available record contains no evidence of procedural or other errors that would have jeopardized his rights.  Furthermore, the quality of the applicant's service did not meet the standards of acceptable conduct and performance expected of Army personnel.

4.  In view of the foregoing, the available evidence is not sufficiently mitigating to warrant an upgrade of the applicant's discharge to a general discharge.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___x_____  __x______  ___x_____  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.



      __________x_____________
               CHAIRPERSON
      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20100022324



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ABCMR Record of Proceedings (cont)                                         AR20100022324



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